Examination of Witnesses (Questions 80
- 93)
TUESDAY 13 DECEMBER 2005
MS MARY
COUSSEY, MS
FIONA LINDSLEY
AND DR
ANN BARKER
Q80 Mrs Dean: What sort of targets
do you think would help to ensure more effective controls?
Ms Lindsley: I do not think I
really understand the question. Controls in what sense?
Q81 Mrs Dean: Effective controls
at border points for good decision-making to be made.
Ms Lindsley: I think that better
decision-making would be improved by knocking out all the things
that are currently used, such as, "You are young, male and
single, you are of marriageable age, you have never travelled
before," or "You know someone who has travelled and
stayed," all these illegitimate things need to be put aside
and very clearly put aside. Then we need to decide what it is
that makes people go home and I think that is a very broad matter
that needs discussion and some legitimate criteria need to be
established. I think what will make better decision-making is
more directive framework given to ECOs by UKvisas, and I say this
in the context of ECOs being trained for three weeks to do their
jobs. They are not lawyers, they have three weeks' training, they
are a long way away from the central management, and I think there
should be some sort of framework. I have put forward one framework;
it does not have to be that framework, but a systematic processing
of the issues and very clear guidance on things that are not relevant
criteria. Another irrelevant criterion is vagueness. For some
reason vague people are going to be the evaders of immigration
control. That is a mad statement if I say it like that, and yet
so many people are refused a visa because they are vague.
Steve McCabe: It also means evasive.
Q82 Mrs Dean: In monitoring the quality
of initial decisions do you think that should be done independently
of UKvisas, or independently of the direct organisation?
Ms Lindsley: Yes, I do think there
is a role for independent monitoring. I think it is done at present
in the most minimal form and I do not think that is satisfactory.
I think it would be good also to be able to monitor the whole
of the visa system, not just the refusals without a right of appeal.
Ms Coussey: Could I just pick
up on what Fiona has been saying about assessing intentions to
return because this is exactly the same criterion being used at
the Ports, and vagueness is one they use as well, but only if
you are a priority nationality; if you are a vague American it
is not a problem. I would endorse what she is saying about a need
for more explicit criteria and a framework given for such decision-making
because it is very subjective and what is doubted on the part
of one immigration officer will be accepted on the part of another
and so you get unfairness creeping in and cynicism, as we have
already discussed, so I agree with the approach that Fiona is
suggesting about making it more systematic and articulating the
criteria more transparently and objectively.
Q83 Mrs Dean: One final question.
You have already obviously said that you consider some of the
reasons given to be wrong or inappropriate. Are the examples you
have given the so-called culture of refusals, as some interest
groups have suggested, and have you seen any attempts to change
the culture and how effective have they been?
Ms Lindsley: There is not a culture
of refusal because most people get the visas, but I think there
is a culture of attitudes which differentially impacts on some
communities. If we look at ECO attitudes, first of all we find
ECOs that are generally polite, well-motivated, hardworking, they
work well as teams, but they do live in ex-pat communities; they
do not speak the language, generally, of the communities in which
they live, and they get moved a lot. So even if they have positive
ideas about finding out where they are some of them are literally
doing six weeks in one place and then six weeks in another place
and they do not have that opportunity. So they live in their community.
I do think that they are not given appropriate training. If they
are going to make decisions which are based on, "You are
doing something inappropriate for your socio-economic class"
they need to understand that to a very high degree. So a lot of
decisions now are made on disproportionate and non-commensurate
grounds, i.e. "What you are doing is not something of your
sort of background would do normally therefore you must be up
to no good." That is the sort of method. If they are going
to use that method then they have to be very well trained in who
is who in their society and I do not think that is done well enough.
In one of my reports I have pointed out that in one post I did
find somebody who was very well integrated herself, who was able
to communicate quite well to the people she was working with,
but that is not common and I think that should be a much bigger
part if that is the way the decisions are going to be made. On
a more legalistic level ECOs do not understand about evidence—and
I think Mary pointed this out—they do not know what a piece
of evidence in support of a proposition is, and this leads to
problems: for instance in relation to forgery—a perfectly
good basis on which to refuse someone a visa. Unfortunately three-quarters
of forgery decisions are not supported with anything, presumably
because the ECO thinks that they know that document is a forgery,
but that is not evidence that it is a forgery. By evidence I do
not mean something heavy-handed, I mean them writing in the file,
perhaps in a note—and this does happen now in some posts—"This
document is a forgery because of these reasons." Or a telephone
note, "I called the bank, they said it was a forgery,"
with a name on it. That is the sort of level. In some instances
probably this was done but there is not seen the need to actually
have some evidence to support it because they do not seem to see
that that is very important. I think that is one of the major
reasons why there have been so many appeals, because there is
a disparate culture, there is a culture in entry clearance posts
which does not understand that they interface with a legal culture
in which they must evidence their decisions. They do operate as
a collective body rather than individuals, in accordance with
propositions which are not supported by research and which do
discriminate in the end against people from poor, unstable and
largely black countries. So a lot of refusals say things like,
"I am aware that greater economic opportunities and higher
standard of living will be open to you in the UK than here in
Iran," for instance. That was said to a government architect
who had had the same job for the last 11 years in Iran. I do not
think there is any evidence that he does have greater economic
opportunities in the UK. There is a lot of evidence that things
are economically better in the UK than in Iran but it is a big
leap to say to an individual, "I am not giving you a visa
because you would be economically better in the UK." He might
be economically a lot worse, working illegally as a cleaner or
whatever is the proposed idea, than with his job in Iran. So those
attitudes do prevail.
Q84 Chairman: Could I follow on from
Janet Dean's question? You mentioned earlier your concerns about
ECOs getting three weeks' training and you raised the issue of
training before, obviously with very little progress being made.
How long would you say, if this is the best way to do it, that
an ECO should be trained for? If they were going to have the type
of level of skills that you have just described, to be able to
assess the cases properly, how long do you think an initial training
period should be?
Ms Lindsley: I should say that
I think there are some movements in training at UKvisas. Again,
my time as visa monitor is so short that I do not have the time
to go and investigate all the things that they are doing and I
am conscious that I may be doing them down, but I am aware that
they have put in effort and resources and they had very impressive
people doing the training. I did take a day and went and sat in
on training. But as Mary said, an ECO has to learn many technical
and team operational issues and of course there is a lot of time
spent doing that and there is less time spent on quality of decisions.
My feeling is that it is very hard for me to judge because it
would depend who you took in the first instance. At the moment
again my understanding is that there are no educational qualifications
necessary for an ECO so you do not start with any particular level
and that may be an issue. If you had graduate entrants maybe you
would need a shorter period than if you take from a broader base.
But I do think I would want more external training.
Q85 Chairman: We have a sense of
what you think the skills are and I am trying to get a sense for
the Committee. If you do not feel able to answer it then please
say so.
Ms Lindsley: No, I have not given
that sufficient thought to be able to say how long it would last.
Chairman: Thank you very much indeed.
Gwyn Prosser.
Q86 Gwyn Prosser: I want to talk
about your latest report where it talks about individual advice
being vital for applicants overseas. Do you agree with the government's
proposal to regulate overseas immigration advisers?
Ms Lindsley: I did not know the
government was going to regulate overseas immigration advisers.
I am not sure how they could do that. They regulate immigration
advice within the UK, and do I agree with that? Yes, I do. In
fact in another capacity I write accreditation exams for lawyers
working within the UK. Externally, at least to my understanding,
there was even a problem endorsing good sources of advice. I did
go and visit the Immigration Advisory Service project in Sylhet,
which is the only source of UK-connected cheap advice. I think
various firms of solicitors have set up abroad and do provide
advice but they would be at normal private solicitor rates rather
than the rates of £10 for as much advice as it takes. I do
think that given that UKvisas is not prepared to say, "You
need to submit X, Y, Z documents"—for some good reasons
because in certain countries those documents will not be available,
so documentation of your claim remains an open book and basically
here are the criteria and how you document it is up to you—in
those circumstances it is something where it helps an individual
to go and talk to somebody who understands the rules and says,
"Okay, so in your circumstances you do own this piece of
property and so you should take the deeds. You do have payslips
so you should take those. You do not have any bank statements
because people do not have banks in your place."
Q87 Chairman: I would like to keep
you, if I could, to the particular question. Our understanding
was that the five-year strategy from the government suggested
that a regulation could be introduced for overseas advisers and
the proposals are being brought forward next year, but it is not
something you have looked at?
Ms Lindsley: No, I am not aware
of that but I could say that I see evidence of very few of them.
I just do not quite understand how, for instance, you would regulate
Bangladeshi lawyers giving advice on British immigration law—that
does happen—or other people posing as advisors in Sylhet.
In Sylhet town there were lots and lots of advisers, most of which
who were regarded as totally rogue and just taking money. How
would British authorities regulate that? I just do not see that
they would have any remit to do so.
Q88 Gwyn Prosser: You have given
us a number of examples indicating why decisions have perhaps
been made wrongly, but specifically with regard to what we call
paper family visits.
Ms Lindsley: Paper family visits.
Gwyn Prosser: We are told a third of
these go wrong. What is your view there? Why do you think that
is happening?
Q89 Chairman: Paper based appeals.
Ms Lindsley: Paper based appeals.
Of course, that is not in my remit. However, I do quote that figure
in my report because I think that is indicative of poor decision-making
because when an appeal goes to a paper hearing all that happens
is that an immigration judge gets the same pieces of paper that
the entry clearance officer reviewed in the post and decided whether
it was an acceptable decision. If in these cases all that is needed
is for somebody else to look at those and say, "No, that
is not a decision"—I think it is 37% actually, slightly
over a third—to me that is pretty damning. I think entry
clearance officers think in family visit cases that their overriding
belief is that they are won by the sponsor in a suit and what
I have spent time to them saying is, "Okay, yes, in oral
appeals you have a sponsor in a suit potentially. But what about
these other ones? What about these ones where you have nobody
present and all you have is the judge with the papers that you
had? Why are they allowing such a high percentage of appeals there?"
Chairman: David Winnick on appeals.
Q90 Mr Winnick: On the position of
appeals, which was mentioned previously by myself, the present
administration brought back appeals for those who wanted to visit
family members. What is the current position as far as the government's
policies are concerned? Have you been consulted about restricting
further the right of appeals?
Ms Lindsley: No, I have not been
consulted. I have expressed opinions in my reports and the reason
I did that was because one of my major findings in my reports
is that when you take away a tranche of appeals you take away
other appeal rights that Parliament did not intend to remove through
wrongful interpretation of the legislation, and over my three
reports I have estimated that approximately 46,000 applicants
for visas were denied appeal rights when they should have been
given them. This is because although the rules seem very simple,
there is a simple definition of a family, and there is a cut-off,
it is six months or less, you do not get a right of appeal as
a student, that seems very simple, it does not seem likely to
go wrong, but it does because there are various issues. For instance,
with the student one what if the module is less than six months,
perhaps we can deny right of appeal in that circumstance? What
if we think that the letter for the college is a forgery, perhaps
we will deny right of appeal there. So these practices have built
up, but particularly in relation to family visitors, and largely
in relation to family visitors by simply not seeing that the visitor
that was being visited was on the list—that simple mistake
led to this quite substantial body of people being denied rights
of appeal. So in my reports I oppose the withdrawal of further
rights of appeal on the basis that you will not just lose those
ones, you will lose some more almost inevitably, particularly
if the people you deal with are abroad and do not have advice,
because the overwhelming majority of people I look at the files
of have no lawyers, no community organisations, nobody; they act
solely on their own in person. So they do not know it is wrong,
they do not know that it is wrong to refuse them a right of appeal
on the basis of the length of the module. They have no idea, so
they accept it and they go away, they do not challenge it. Again,
another point on which I would oppose any removal of right of
appeals would be simply the quality of decision-making as reflected
in the high rates of success on appeal, really incredibly high
rates of success on appeal.
Q91 Mr Winnick: On this, of course,
without the right of appeal the entry clearance officer is judge
and jury, knowing that the decision is not to be challenged and
that the only way it may be questioned is if the Member of Parliament
being asked by the sponsor writes to the Minister, and more than
likely the Minister will uphold the decision of the entry clearance
officer. So clearly you do accept that the quality of the ECO's
decision, is to a large extent based on whether or not such decisions
can be appealed against.
Ms Lindsley: I think it does not
necessarily improve the quality but it would necessarily give
people a way of challenging it and it would bring the information
home as well. It brings the information back to this country that
things are going wrong. There is a very much touted Tony Blair
quote, in which he says it is human nature to make better decisions
if you have a right of appeal. I think to a certain extent it
is but you also lose the information about the quality of decision-making
if you take away the right of appeal, and it stays out there rather
than being back here. Remember, I am dealing largely with people
who have no UK nexus, so although you may have people coming to
you about family visits those without the right of appeal at present
have no connection with this country, and one thing recently I
addressed my mind to is that they cannot complain to the Ombudsman
either about mal-administration, because you can only complain
to the Ombudsman, to my understanding, if somebody in the UK has
suffered some sort of injustice and you have an MP. So if you
are somebody who applies to visit just as a tourist and you are
treated very badly you have no mal-administration remedies.
Q92 Chairman: In the case of family
visits, which I suppose are the ones that I, as an MP, see most
of, for the reasons we have just explained—and this may
reveal me to be a very bad MP—I must say that in practice
I for a number of years advised constituents who had sponsors
to resubmit the application dealing with whatever issue it was
that had been pointed out by the ECO, and had a very high success
rate, much higher, than going through the appeal procedure because
that inevitably looks at the original decision. It seems to me
it is very often the case that the decision may be, from a commonsense
point of view wrong, but there may have been some reason for it,
and that has always led me to feel that the issue here is not
so much about the appeals but the quality of advice that is available
for people making an application. Because I would say—and
I am just putting to you, I do not know if you are experienced
about this—the great majority of cases that come to me,
had they taken proper advice in submitting the application, would
have been successful in getting the visa, and a small amount of
redirecting as to how they present their case enables people to
come and visit their families, stay for the wedding and going
back again. So should you not be putting at least as much evidence
on the quality of advice that exists to applicants as on the inevitable
bureaucratic procedure of appeals?
Ms Lindsley: In my reports I say
both, and as somebody mandated to look after the interests of
people without appeal rights then obviously advice is what I can
say. I cannot say, "Give these people back their appeal rights,"
that is not what I am there to do. So, yes, I do focus on advice.
We only have one project abroad really that is doing free-ish
£10 advice at the moment. But I would totally endorse that;
I think with help people do go and get the document that shows
they do have the reason to leave the UK at the end of their visit
and they understand what it is about. So, yes, a lot of people
can correct that and sometimes it is faster to re-apply than lodging
an appeal. But there are going to be other cases where you just
hit a brick wall and the ECO says, "That is not enough,"
and the applicant says, "It is," and they are the ones
where you would want to go to appeal.
Chairman: Mr McCabe, to end the session.
Q93 Steve McCabe: You told the Committee
earlier that your successor will have a slightly broader remit
than yourself. I wondered, to the best of your knowledge are there
any additional areas that could or should be monitored that will
not be included in your successor's remit that you think are important?
Ms Lindsley: I do not think my
successor has a broader remit at the moment. Obviously if the
current Bill goes through Parliament and there are more categories
without the right of appeal they have a broader remit in the sense
that more categories with no rights of appeal will be added to
them, but as yet I do not know what those are going to be and
so we will have to wait and see on that front. They do not have
a broader remit in the sense that I would see it would be quite
good for the visa monitor to be the monitor of the visa system
and to be able to look at the thing as a whole because it does
operate as a whole. So, for instance, I am the visa monitor for
people without rights of appeal but I often see that if we focus
resources on those people on the desk, which there has been a
tendency to do, an incoming flood of applicants, let us get those
dealt with, what happens is there is not the time spent on paperwork
and the processing of appeals. So although it is great for the
people that I represent—and we see the time of waiting going
down and decision-making is faster—if you are monitor of
the whole system you can say, "Yes, that was a successful
move by the post but unfortunately they did not process any appeal
papers that year as a result of putting resources in so all the
people with appeals waited for three years." So it would
be better from that perspective. It has not been popular where
I have gone into other areas either, but I think it is very difficult
if you go into a post and you see something else going wrong and
you know no one else is going to know about it unless you report
on it, and I think it makes sense for the person who is monitoring
on visas to be able to comment on all issues of visas.
Chairman: That is a very good note on
which to end. Can I thank all three of you? You are obviously
all pushing the limits of the roles that you have been given to
the absolute extreme and interested in delivering a better system,
and we have benefited enormously from you this morning. Thank
you very much indeed.
|
